409 U.S.

937
93 S.Ct. 245
34 L.Ed.2d 190

George HADLEY
v.
State of ALABAMA.
No. 71-6888.

Supreme Court of the United States

October 16, 1972

On petition for writ of certiorari to the Supreme Court of Alabama.

The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.

I vote to hear this case because I assume that equal protection and due process
of law under our Constitution apply to the rich as well as to the poor, to whites
as well as to the minorities.1

In Alabama a certified transcript or sufficient statement of the evidence must be

filed within 60 days from the taking of an appeal or from the trial court's ruling
on a motion for new trial, whichever is later.2 Petitioner filed his transcript
three days beyond the deadline. The Courts of Appeals dismissed his appeal as
out of time. Hadley v. State, 47 Ala.App. 738, 259 So.2d 853 (1971).

The Supreme Court of the State of Alabama affirmed, with three justices
dissenting. Ex parte Hadley. Under the case law of the Supreme Court of
Alabama, had petitioner been an indigent, such tardiness would not have
prevented appeal. In Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966),
the transcript of evidence was filed approximately sixteen (16) days after its due
date. The court did not dismiss for tardiness but laid down a new procedure '. . .
this court will not honor requests to strike when a lower court . . . has ordered a
free transcript. See Rule 48.' Such motion to dismiss was also denied in
Brummitt v. State, 44 Ala.App. 78, 203 So.2d 133 (1967), where the court

allowed a late filing on a showing of indigency the day after defendant's arrest,
although no formal adjudication of indigency was ever made.
4

The question petitioner Hadley raises here and raised in the Alabama Supreme
Court below, is whether by case law, a State can give more time for filing of a
transcript for a person without funds than for a person of wealth.3 The
exception for indigents was created by Rule 48 of the Supreme Court of
Alabama which puts within the court's discretion the power to take appeals in
cases where the transcript filing is late but within time for taking an appeal.4
Such was the case here. The spirit of the Rule is a generous and progressive
one. Although not written to create classes of appellants, the courts have added
that feature. The class is defined by wealth. We have held that a class based on
wealth is inherently suspect. William v. Illinois, 399 U.S. 235, 90 S.Ct. 2018,
26 L.Ed.2d 586 (1970), Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d
130 (1971), Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113
(1971), Harper v. Virginia, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169
(1966). And when a suspect classification is made in such a manner as to
impair a fundamental right, the burden on the State to prove a compelling state
interest is a heavy one. While there is no constitutional right to appeal, a State
may not grant appellate review in such a way as to discriminate between those
appellants based who are wealthy and those who are poor. Griffin v. Illinois,
351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1955).

Alabama's law seems to be out of line with that principle. I would therefore
grant the petition and put the case down for oral argument.

In Johnson v. Committee on Examinations, 407 U.S. 915, 92 S.Ct. 2439, 32

L.Ed.2d 690, the Court last Term denied a petition for certiorari in a case from
Arizona where a white candidate for admission to the Bar claimed
discrimination against him as compared with the treatment accorded Black
candidates. It seems that the passing grade on Arizona Bar Exam is 70.
Petitioner alleged that he got below 70 and was rejected, while these Blacks
were admitted whose grades were likewise below 70 and no better than his
own. I dissented from the denial of certiorari in that case. Like the present one,
it seems to be case of reverse discrimination.

Code of Alabama, Title VII 827(4):

'The Court reporter's certified transcript shall be filed with the clerk within sixty
days from the date of the taking of the appeal or within sixty days from the date
of the court's ruling on the motion for a new trial, whichever date is later; and

any succinct statement of the evidence made in lieu of such transcript, as

authorized in section 827(3) hereof, shall be filed with the clerk within sixty
days from the date of the taking of the appeal, or within sixty day from the date
of the Court's ruling on the motion for a new trial, whichever date is later.
Provided that this period may be extended by the trial court for cause.'
3

Petitioner obtained private counsel at trial and paid personally for the
transcript, but was without counsel on appeal.

Supreme Court of Alabama Rule 48.

'In cases at law where the court reporter's transcript of the evidence is not filed
with the clerk of the circuit court within the time prescribed by law, but is filed
within the time for taking an appeal, it will be considered by this court if no
objection thereto is presented upon the submission of the cause; and it may be
so considered in the discretion of the court, even though the point as to the
delay be presented on appeal, unless counsel objecting thereto shall point out,
with supporting affidavit, material omissions or defects in such certified
transcript which should or would have been the subject of contest before the
trial judge; in which latter event the certified transcript is not to be considered.'